Federal judge denies delay in Upper Big Branch sentencing

CHARLESTON, W.Va. -- A federal judge has again refused to delay the sentencing of a former Upper Big Branch Mine superintendent who pleaded guilty to plotting to skirt safety rules at the Raleigh County operation.

U.S. District Judge Irene Berger on Wednesday turned down the request from Gary May, the former mine superintendent who is cooperating in the ongoing investigation of the April 2010 explosion that killed 29 Massey Energy Co. miners.

Berger ruled that May "has failed to state good cause for the requested continuance," which May's lawyer filed just after the judge rejected a delay requested by U.S. Attorney Booth Goodwin.

May is scheduled to be sentenced on Jan. 17, and faces a maximum of five years in prison after pleading guilty to one felony.

May argues that without the delay, he would be denied the benefit - in the form of a potentially lesser sentence -- for his cooperation with the government mine disaster probe.

May's attorney, Tim Carrico, said in a Dec. 21 court filing that the federal sentencing guidelines currently advise a sentencing range for May of between 15 and 21 months in prison.

May hoped that continued cooperation with federal prosecutors would convince the government to file a motion stating that May has provided "substantial assistance" in the Upper Big Branch probe, a move that could convince Berger to sentence him to less than the guidelines advise.

On Dec. 19, Berger ruled that Goodwin "failed to state good cause" in a request to delay the sentencing for the third time since May pleaded guilty in March 2012.

Goodwin and Assistant U.S. Attorney Steve Ruby had asked for a four-month delay because May "continues to provide important cooperation in an ongoing criminal investigation."

"Notable progress has been made in the investigation since this sentencing proceeding was last continued," Ruby wrote. "The further continuance requested here will allow that progress to be extended and will avoid any risk to the investigation from the sentencing proceeding itself."

May pleaded guilty to plotting "with others known and unknown" to put coal production ahead of worker safety and to conceal the resulting hazards on numerous occasions at Upper Big Branch. May admitted that he took part in a scheme to provide advance warning of government inspections and then hide or correct violations before federal agents could make it into working sections of the mine.

The day before May's sentencing, on Jan. 16, Berger will hold a plea hearing for longtime Massey official David C. Hughart, who also is cooperating in the investigation of Massey safety practices. Hughart has agreed to plead guilty to two criminal charges and provide testimony about a decade-long conspiracy to defy safety laws and hide the resulting conditions from government inspectors.Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.